Since President Donald Trump’s administration rescinded the Cole Memo on Jan. 4, legal marijuana industries in states like Colorado have been thrown into uncertainty. U.S. Attorney General Jeff Sessions, in his new guidance, basically said that federal prosecutors ought to exercise ordinary discretion when it comes to marijuana-related activities, prioritizing crimes that involve distribution to minors, diversion out of state and gang activity.
Though federal prosecutors prioritized those things under the Cole Memo too, Sessions indicated that all things marijuana could be considered serious, opening the door to a mass crackdown on otherwise state-legal activities.
Colorado U.S. Attorney Bob Troyer has indicated he doesn’t intend to change federal marijuana enforcement in this state. But still, the whole situation will remain tenuous until the conflict between state and federal law finally gets resolved, and that can only happen through an act of Congress.
Our own Mayor John Suthers, a former federal prosecutor himself, harped on that point in a sarcastic letter to the Gazette’s staunchly anti-marijuana editorial board. “It’s an essential tenet of the rule of law that Congress enacts laws and the executive branch, including the Department of Justice, enforces them,” he wrote, mocking the public and members of Congress for “[needing] a remedial course on the basic principles of American government.”
“If Congress doesn’t like the laws they passed, it’s Congress and not the executive branch that has the responsibility to change them,” he wrote.
Of course, some members of Colorado’s congressional delegation have spent a long time trying to do just that.
U.S. Rep. Jared Polis, D-Denver, who is mounting a gubernatorial campaign, told the Cannabist’s Alicia Wallace that he used to get laughed at for talking about drug policy reform in the halls of Congress, but now he finally has the ear of colleagues who’ve come to realize that it’s time to act.
Most of Colorado’s delegation has coalesced around a measure that Polis previously proposed. Similar to the Rohrabacher-Blumenauer amendment that prevents the Department of Justice (DOJ) from spending money to interfere with medical marijuana, a measure to protect recreational marijuana the same way could be attached to an upcoming spending bill that Congress must pass to avoid a government shutdown when current funding expires on Jan. 19.
Beyond that, members of Congress have rushed to co-sponsor the handful of bills designed to address state-legal marijuana, many of which have been around for years without getting out of committee. A number of them do similar things, but for the most part, they fall into the following categories: bills to exclude marijuana from the Controlled Substances Act (CSA) in states that legalize; bills to reschedule marijuana under the CSA, either to Schedule II or III; and bills to remove marijuana from the CSA entirely, transferring regulatory authority to the agency that oversees alcohol.
Rescheduling would seem like the more restrained, incremental approach, likely to appeal to more conservative members. (The Republican Party controls both chambers of Congress and the presidency, after all.) But medical marijuana advocates and other drug policy reformers worry that rescheduling could create a whole new set of problems if only drug companies have the ability to bring medical marijuana to consumers.
Substances in Schedule II under the CSA “have a high potential for abuse which may lead to severe psychological or physical dependence” while Schedule III substances “have a potential for abuse less than substances in Schedules I or II and abuse may lead to moderate or low physical dependence or high psychological dependence.” For reference, oxycodone, fentanyl and amphetamines are in II. Codeine and ketamine are in III.
Several big drug companies are already conducting trials on cannabis-derived medicines and synthetic marijuana. London-based GW Pharmaceuticals, which operates as Greenwich Biosciences in the U.S., is developing drugs called Epidiolex designed to treat childhood epilepsy and Sativex for multiple sclerosis. The company has priority status for their applications to the Food and Drug Administration (FDA).
Local medical marijuana advocate Bridget Dandaraw-Seritt fears a scenario where Congress relegates recreational marijuana to the states but consolidates medical marijuana under the control of the FDA and, by extension, the pharmaceutical industry.
“None of those products have the variety and overall chemical composition of the plant,” she says. “Patients are well ahead of where science is, and a pharmaceutical version of medical cannabis stands to leave the majority of patients behind.”
So, as usual when significant laws are significantly changed, the unintended consequences are worth paying attention to.
